GENERAL TERMS AND CONDITIONS

Version in force since February 28, 2019

PREAMBLE


Happydemics a French société par actions simplifiée with a share capital of 1 947,70 €, with head offices located at 73 rue de la Plaine, 75020, Paris, registered at the “Registre du Commerce et des Sociétés” of Paris under the number 810 129 478, (“Happydemics” or the “Provider”), has developed and sells a solution deployed in Software-As-A-Service (“SaaS”) mode allowing marketing survey to be carried out in the form of a questionnaire the («Solution »).

Happydemics and the Customer, as identified in the Purchase Order, are referred to individually or collectively as the "Party" or “Parties”

The Customer acknowledges having received and/or been able to obtain from Happydemics all the necessary information in order to assess the adequacy of the Services provided by Happydemics to the Customer’s its survey needs.

These general terms and conditions (the « General Terms and Conditions») govern, together with the specific terms and conditions or any purchase order executed by the Customer (the "Purchase Order"), the contractual relationship between Happydemics and the Customer and shall prevail over any other document such as any general terms and conditions of purchase of the Customer, advertising or marketing document and together form the "Agreement".

1. DÉFINITIONS

The terms starting with a capital letter shall have, either the definition assigned to them herein, or the following definition :

(i) Purchase Order - Means the document that identifies the Customer, executed by the Customer and specifies the type of offer chosen (Starter or Premium) for the Services.

(ii) Customer Data - Means the data provided by the Customer in the context of the use of the Solution.

(iii) Survey - Means the results of the questionnaire sent to a consumer or other panel and edited by Happydemics.

(iv) Platform - Means the platform accessible in SaaS mode allowing the Customer to use the Solution, access the Surveys, order Surveys and monitor the consumption of the Survey Pack ordered.

(v) Survey Pack - Means several Surveys that the Customer can order and buy in advance and for which the price is decreasing based on the number of Surveys included in the chosen Pack.

(vi) Services - Has the meaning set out in section 2.

(vii) Assistance - Means the assistance and support services in the use of the Platform and support provided by Happydemics to the Customer and as described in section 6.

(viii) User - Means the person under the Customer's responsibility (employee, agent, representative, etc.) who has access to the Platform.

2.Purpose and Description of the Services

The Agreement sets out the terms and conditions under which Happydemics provides the following services to the Customer (“Services”) including for the Starter and Premium offer: (i) the performing Surveys, (ii) the provision in SaaS mode of the Solution via the Platform; (iii) the hosting of Customer Data provided to Happydemics via the Platform and Surveys and the possibility to download the Surveys; and (iv) assistance and support services. For the Premium offer as identified in the Purchase Order, the Services also include (i) a reporting with analyses and suggestions, (ii) an oral presentation of the reporting, (iii) a personalized video and (iv) a dedicated support service.

By executing a Purchase Order or, by using the Platform, the Customer fully accepts these General Terms and Conditions.

3. Subscription to the Services and ordering a Survey

In order to be able to use the Services, the Customer executes a Purchase Order referring to these General Terms and Conditions.

The Purchase Order specifies and contains :

  • Customer identification
  • The identification of the ordered Survey or Survey Pack (Starter or Premium offer)
  • The validity period of the Survey Pack, if applicable
  • The type of Survey ordered
  • The options chosen by the Customer, if any
  • The price and specific payment terms
  • The day-man rate

If a Customer purchases a Survey Pack, the Customer may order a Survey as part of the Survey Pack either by placing a new Purchase Order detailing the characteristics of the Survey ordered or directly from the Platform, which will be confirmed in writing. Each Survey ordered via the Platform will be deducted from the number of Surveys ordered as part of the Survey Pack chosen by the Customer. The Customer can monitor the number of Surveys remaining in its Surveys Pack directly on the Platform.

4. Access to the Platform

The Platform is generally accessible except for maintenance periods, on a 24/7 basis, including Sundays and public holidays.

Users access the Platform from the Customer's computers using the login details created by the Customer upon registration and assigned to each User up to a maximum of five (5) Users per Customer. The login details are personal and confidential.

The Customer is responsible for the use of the login details. It will ensure that no unauthorized person by Happydemics has access to the Platform. In the event of loss or theft of one of the login details, the Customer uses the password reset procedure accessible on the Platform which allows it to receive a link to create a new password on its email address indicated during registration. In all cases, the Customer is responsible for the security of its information system and in particular its computers.

Pursuant to article 1204 of the French Civil Code, the Customer guarantees the compliance of these obligations by the Users.

5. Carrying out Survey and delivery

All the deadlines indicated in the Agreement, including the deadlines for submitting the Survey, are given for information purposes only.

Nevertheless, in the context of a prepaid Survey Pack, in the event that the first Survey is either not delivered within one (1) month following the execution of the Purchase Order due solely to Happydemics or if the number of respondents mentioned in the Purchase Order is not met, the Customer may request reimbursement for the unused prepaid Surveys our cancel his engagement with Happydemics.

Once completed, Surveys are made available to the Customer and are accessible from the Platform. The Customer is informed by email of the availability of the Survey.

Happydemics shall be deemed to have provided the Surveys and the Customer to have accepted them when the Customer has been notified of the availability of the Survey on the Platform.

6. Assistance and support

The Assistance provided by Happydemics consists in answering Users' questions about the use of the Platform's various functionalities. This Assistance is available from Monday to Friday included, from 10am to 7pm (Paris time), with a maximum of 1 hour per month and can be reached by email : support@happydemics.com.

As part of the Premium offer, the support for the deployment of a Survey provided by Happydemics consists in answering Users' questions and assisting them in the creation of the questionnaire to conduct the Survey. This support is provided from Monday to Friday included, from 10am to 7pm, with a maximum of 2 hours per Survey except for the Starter Pack option where they are excluded.

Any Assistance and/or support provided of a duration longer than that specified above may be invoiced on the basis of time spent at the man-day rate specified in the Purchase Order. Happydemics will inform the Customer of the fact that its teams have exceeded this limit before any additional invoicing.

7. Quality - and availability of the Platform

The Customer is informed of the technical risks associated with the Internet, and of the interruptions in access that may result from it. Happydemics cannot guarantee that the Platform will be accessible and available at all times, being executed remotely via the Internet, which the Customer acknowledges.

Access to the Platform may be suspended occasionally due to unavailability or slowdown related to maintenance operations necessary for the proper performance of the servers on which the Customer Data is hosted.

Happydemics will not be held liable for possible consequences of any unavailability or slowdown of the Platform on the Customer's activities.

8. Right to use

Happydemics grants the Customer a personal, non-exclusive, non-transferrable right to use the Services during the term of the Agreement and for the entire world.

The Customer may only use the Services in compliance with its needs and, where applicable, their documentation.

The right of use is limited to the right to access the Platform, in SaaS mode via an Internet connection and to use the Surveys for internal use by the Customer for marketing research purposes to the exclusion of any other purpose. The Customer may under no circumstances make the Services available to a third party, and shall not make any other use, in particular but not limited to any adaptation, modification, translation, arrangement, distribution, reverse engineering.

The Agreement does not grant the Customer any ownership rights over the Services. Any use not expressly authorized hereunder is prohibited.

In the event of non-compliance with these provisions by the Customer, Happydemics may, at its own discretion, suspend the Services or terminate the Agreement as provided for in section 16 without prejudice to any claim for damages.

9. Ownership of Customer Data and Surveys

The Customer is and remains the owner of all Customer Data that it transmits to Happydemics, in particular within the scope of the Services. In addition, the Customer is the owner of all the Surveys generated by the Solution with the Customer Data used.

Notwithstanding the above, Happydemics is expressly authorized to use the Surveys and Customer Data to improve the Solution or to generate statistics from the Customer Data and Surveys in order to increase its database statistics and to use them for all purposes and conditions as part of its activities.

Under no circumstances will the Surveys or Customer Data be assigned or made available to a third party without the prior consent of the Customer.

Happydemics reserves the right to delete from the Platform any Survey that is more than one year old without having to inform the Customer in advance.

10. Personal Data

Considering the nature of the Services and the purpose of the Solution, no personal data is intended to be processed by Happydemics with the exception of a business management processing of the professional data of the Users of the Customer for which Happydemics acts as data controller. In addition, the Customer undertakes to transmit to Happydemics or to use in connection with the Services only the personal data strictly necessary for the performance of this Agreement, in particular the Customer undertakes not to transmit any personal data of its customers. Happydemics cannot be held responsible for the processing of the Customer's client personal data.

Therefore, each Party undertakes to comply with the regulations in force regarding personal data (the "Personal Data"), in particular the French Loi Informatique et Libertés n° 78-17 of 6 January 1978 in its latest version and the General Regulation on the protection of personal data (EU) 2016/679 (the "Data Privacy Regulation").

The Customer acknowledges that it is in charge of obtaining all legal and administrative authorizations required for the use of Users’ Personal Data processed via the Service and owned by the Customer. Therefore the Client guarantees the accuracy of the Personal Data and that it acts as a data controller in the meaning of Data Privacy Regulation.

11. Confidentiality

Each Party undertakes to (i) keep confidential all confidential information, including Personal Data, received from the other Party, including (ii) not to disclose the other Party's confidential information to any third party, other than employees or subcontractors who need to know it; and (iii) to use the other Party's confidential information only for the purpose of exercising its rights and performing its obligations under the Agreement.

Notwithstanding the above, neither Party shall have any obligation whatsoever with respect to information that (i) has entered or would enter into the public domain independently of fault by the receiving Party, (ii) is independently developed by the receiving Party, (iii) is known to the receiving Party before it is disclosed by the other Party, (iv) would lawfully be received from a third party other than through breach of confidentiality, or (v) required to be disclosed under the law or by a court decision (in which case they should only be disclosed to the extent required and after having notified in writing the Party that provided them).

The Parties' obligations regarding confidential information shall survive for the duration of the Agreement and as long as, after its termination, the information concerned remains confidential to the disclosing Party and, in any event, for a period of 5 years after the termination of the Agreement.

The Parties also undertake to ensure the compliance of provisions by their employees staff and by any subcontractor, agent or third party who may be involved in any way whatsoever in the context of the Agreement.

12. Term

Unless otherwise agreed in the Purchase Order, the Agreement becomes effective upon the Customer's registration on the Platform or, failing that, upon execution of the Purchase Order.

In the absence of a specific provision in the Special Conditions, the Agreement remains in force for the entire duration of the validity of the Survey Pack as indicated in the Purchase Order.

The Services ordered cannot be terminated.

Happydemics reserves the right to delete the Customer's User account and all Customer Data and Survey delivered if the Platform, has not been used or Survey has not been ordered for one (1) year.

13. Prices and payment terms

The price for the Services is indicated in the Purchase Order.

The Services ordered are invoiced on the date of the Purchase Order. When the Customer purchases a Pack, it may benefit from an additional discount indicated in the Purchase Order if the Services are paid in advance and not when ordering a Survey provided included in the Survey Pack.

The prepaid Survey Packs must be used by the Customer within one year of execution of the relevant Purchase Order unless otherwise specified in the Purchase Order. In the event of non-use of all the Surveys of the Pack at the end of this period, Happydemics reserves the right to modify the prices, invoice all the Surveys not used if they have not been paid in advance and, for Surveys paid in advance, they may no longer be used/ordered after this period.

All invoices issued by Happydemics shall be paid within thirty (30) days of the invoice date. The amounts due are paid by wire transfer to the bank details indicated on the invoice. All amounts paid to Happydemics are non-refundable.

14. Consequence of a delay/default in payment

Pursuant to article L.441-6 of the Commercial Code, in case of late payment by the Customer of any amount due for any reason whatsoever within the agreed deadlines, Happydemics reserves the right, within eight (8) days after sending the Customer a formal notice by registered letter with acknowledgement of receipt, to pay the amounts due, which have remained without effect, to charge the Customer of an amount equal to three (3) times the legal interest rate calculated on a daily basis from the date due for payment until the date payment is made in full plus the applicable VAT. If the late payment interest rate defined above is lower than the minimum rates provided for in Article L441-6 of the French Commercial Code, the surcharge for late payment will be calculated on this minimum rate.

In addition, Happydemics may claim a fixed recovery fee of € 40 (forty euros) on top of the fees and expenses actually incurred should these be higher than the above fixed fee.

In addition, in the case of default of payment in due time by the Customer of an undisputed invoice in accordance with this section and without prejudice to any action for damages, Happydemics reserves the right to suspend the Services or terminate the Agreement with five (5) days prior notice, without triggering its liability.

In case of early termination of the Agreement, all sums payable by the Customer will be invoiced and will be immediately due.

15. Liability

Happydemics' commitments hereunder are subject to a best effort obligation (« obligation de moyen »).

Happydemics shall not be liable in the event of breach or negligence by of the Customer or a third party. Happydemics liability can only be triggered in case of breach and proven negligence and is limited to direct damages and in no event shall Happydemics be liable for any indirect or any other type of damages of any kind such as loss of profits and goodwill, loss of business or business benefit.

In any case, the total amount of Happydemics' liability shall not exceed an amount equal to 50% of the total amounts paid by the Customer during the twelve (12) months prior to the event giving rise to such damages.

The Customer is solely responsible for the quality, lawfulness and accuracy of the Customer Data and other elements provided to Happydemics hereunder. It also guarantees that it has all the rights and authorizations necessary to use the Customer Data and content. Consequently, it shall hold harmless Happydemics from any consequence and liability in the event of non-compliance with this guarantee.

The Customer is solely responsible for the quality, lawfulness and accuracy of the Customer Data and other elements provided to Happydemics hereunder. It also guarantees that it has all the rights and authorizations necessary to use the Customer Data and content. Consequently, it shall hold harmless Happydemics from any consequence and liability in the event of non-compliance with this guarantee.

16. Termination

Either Party may terminate this Agreement if the other Party commits a breach of any of its obligations that has not been cured within thirty (30) days of receiving written notice.

Upon termination of the Agreement for any reason whatsoever, the Customer will immediately cease to use the Services.

The fact that the Customer no longer uses the Platform or does not order Surveys does not results in the suspension of the Agreement or modifying the validity period of the ordered Surveys Packs, since the obligations to pay the sums due under the Agreement remains in force.

17. FORCE MAJEURE

Neither Party hereto will be liable for defaults or delays of its obligations under this Agreement due to causes determined as a force majeure as defined by article 1218 of the French Code Civil.

If the performance of the Agreement is significantly impeded for a continuous period of one (1) month due to an event qualified as force majeure, each of the Parties may terminate the Agreement immediately upon written notification sent by registered letter with acknowledgement of receipt to the other Party.

18. General Terms

Amendment .Happydemics reserves the right to modify and update the General Terms and Conditions without prior notice. A notification will be made to the Customer by email. Any use of the Services after such notification will be subject to the General Terms and Conditions in force at the time of use and the Customer will be deemed to have consulted and accepted the new General Terms and Conditions. Any modification of a Purchase Orders must be set out in a written amendment executed by the Parties.

Commercial reference .Happydemics is expressly authorized by the Customer to use and reproduce the Customer’s company name, commercial name, trademarks and mention the existence of the contractual relationship for marketing, commercial and advertisement purposes.

Non-waiver .Failure by either Party to notify the other Party of the breach of one of the provisions of the Agreement shall not constitute a waiver of the right to claim damages if such breach persists. Failure by either Party to enforce any of its rights of this Agreement will not be deemed as a waiver of such rights.

Change of circumstances .The Parties, fully informed of the rights granted by the Article 1195 of the French Civil Code, expressly exclude any recourse in case of change of circumstances, as set out in the Article 1195 of the French Civil Code, whatever the circumstances beyond the control of the Parties. The Parties agree to bear the risks relating to any change in circumstances unforeseeable at the time of the execution of the Agreement which would make its performance excessively onerous for them, and expressly waive the right to request any renegotiation and/or judicial revision and/or non-judicial revision of the Agreement in this respect, unless otherwise agreed in this Agreement.

Severance .If any of the provisions of the Agreement is held to be void or otherwise unenforceable, it shall not invalidate the validity and/or enforceability of the remaining provisions of this Agreement. However, the Parties may agree by mutual agreement to replace the invalidated clause(s).

Sub-Contracting, transfer and assignment .Happydemics reserves the right to subcontract all or part of the Services and/or Assistance to one or more subcontractors of its choice and duly selected by it or to assign the Agreement or the rights and obligations deriving from the Agreement to a third party at its discretion. In this case, these third parties will be bound by a similar confidentiality obligation to that entered into by Happydemics hereunder.

Applicable law and jurisdiction .This Agreement is exclusively governed by the laws of France. Any dispute of any nature which may arise between the Parties, if it is not resolved amicably within thirty (30) days of receipt of a letter of formal notice materialized by the conclusion of settlement agreement, shall be referred to the Paris Commercial Court.